'No required penalties and no proposed criminal sanctions'

Just days after an Australian government minister declared the Trans-Pacific Partnership “ready to be sealed”, another leak from the Salt Lake City round of talks reveals that the parties can't agree to the environmental chapters of the treaties, even though they're voluntary and largely unenforceable.

For the unaware, the TPP is a US-led treaty being mulled over by governments in Asia and Oceania. Generally speaking, it proposes smoothing over differences in business laws, and making life much easier for multinational corporations by allowing them to sue states if they don't like local regulations.

The environmental protections offered by the chapter also seem to be far outweighed by the other provisions in the treaty, such as "investor-state dispute resolution settlement" (ISDS). While ISDS provisions allow companies to sue countries who raise their bar of requirements for environmental protections too high, the TPP's environmental chapter seems too weak to provide any countervailing protection.

The environmental treaty would ostensibly deal with overfishing, trade in endangered species, illegal logging, and elimination of tariffs on “environmental goods and services”, but with no strong enforcement mechanism.

As Wikileaks notes in its press release, “the Environment Chapter is noteworthy for its absence of mandated clauses or meaningful enforcement measures. The dispute settlement mechanisms it creates are cooperative instead of binding; there are no required penalties and no proposed criminal sanctions.”

That contrasts, for example, with the treaty's proposed criminal sanctions on copyright infringement.

In the same leak, the "Report from the Chairs" outlines the differences between the negotiating countries – and, as was apparent in the Salt Lake City round of negotiations, the US appears to be isolated on many of the outstanding issues.

For example, America won't agree to the text on Trade and Biodiversity because it is not party to the Convention on Biological Diversity. It must be pleasing to the US to have Australia on its side in opposing the chapter covering Trade and Climate Change: the treaty's commitment to phase out fossil fuel subsidies, along with its recognition of climate change, seems equally unpalatable to both governments.

According to an analysis posted by Wikileaks here, written by Jane Kelsey of the University of Auckland, America remains the outlier in many of the contentious points of the negotiation: “The most fundamental problem for the US is the refusal of all the other countries to agree that the chapter should be subject to the same dispute settlement mechanism as the rest of the agreement. It provides for consultation at officials and ministerial levels, leading to arbitration and agreement to a plan of action, but there are no penalties if the state does not implement the plan,” she writes.

Still in New Zealand, the NZ Heraldquotes Sustainability Council executive director Simon Terry as saying that the gains for the environment are “minimal” because they're “ far outweighed by the harm other sections of the agreement would cause.”

The countries involved in the negotiations are America, Canada, Australia, New Zealand, Japan, Malaysia, Vietnam, Brunei, Singapore, Chile and Peru. Interestingly, while the Australian government has joined others to insist that the TPP negotiations remain secret, the environmental text explicitly calls for public consultation processes to be put in place. ®